KOTAK MAHINDRA BANK LIMITED vs The Alumunium Manufacturing Company Ltd (In Liquidation) on 18 August 2026

1. The Aluminium Manufacturing Company Ltd (In Liquidation) having office at 9, Old Post Office Street, Kolkata – 700001.

2. CHANDRAKANT PASARI residing at 4 RANEY PARK, KOLKATA- 700019

3. SUSHILA DEVI PASARI residing at 4 RANEY PARK, KOLKATA- 700019

4. ANKARMAL PASARI residing at 4 RANEY PARK, KOLKATA- 700019

5. SAJAN KUMAR PASARI residing at 4 RANEY PARK, KOLKATA- 700019

6. SMT. GAYATRI DEVI PASARI residing at 4 RANEY PARK, KOLKATA- 700019

7. BHAGIRATH PASARI residing at 4 RANEY PARK, KOLKATA- 700019 ... Respondents For Appellant : Mr. Pratik Ghosh , ld. adv. For Respondent : Mr. Soumya Roy Chowdhury, ld. Adv. Ms. Sanchali Bhowmik, ld. Adv. Mr. Aditya Mukherjee, ld. Adv. THE APPELLATE TRIBUNAL : This appeal is preferred against an order dated 02.12.2019 passed by learned DRT-I Kolkata in O.A. 540 of 2018 arising out of T.A. 09 of 2002 (UCO Bank Vs. The Aluminum Manufacturing Co. Ltd. & Ors.).

2. As per pleadings of the parties an original suit No. 996 of 1980 was filed by the UCO Bank before the Hon’ble High Court at

Calcutta for a decree of Rs.1,29,00,195.67paise. Suit was subsequently transferred to DRT-I Kolkata and re-numbered as TA. 09 of 2002. The loan account was assigned in favour of appellant namely Kotak Mahindra Bank Ltd on 31.03.2006. The T.A. was dismissed in default on 17.06.2013. A restoration application was filed before the learned DRT-I Kolkata which was kept on pending, but on 02.12.2019 learned DRT-I, Kolkata dismissed the T.A. 09 of 2002 on the ground that : “The application has been dismissed on 17.06.2013. As far as we are concerned there is no petition pending with us, so as such matter is dismissed.”

3. Appeal No. 46 of 2020 was filed by the appellant herein. Vide order dated 14.12.2020 application u/s 5 Limitation Act was allowed and vide order dated 19.07.2023 appeal was allowed and order dated 02.12.2019 was set aside. This order was challenged before the Hon’ble Calcutta High Court in CO. No. 3926 of 2023 which was allowed on 12.04.2024. Hon’ble High Court held in Para 11, 12, 13 and 15 as under :

11. However, the contention of Mr. Sarkar that the appeal and the application were non est in the eye of law for not having been filed by a proper notarized affidavit, cannot be ignored. Nothing prevented the bank from getting their application notarized in Mumbai and filing the appeal and application in Kolkata. Notarizing an affidavit in the absence of the deponent before the Notary Public in Kolkata, was not the proper process. The deponent could not be identified.

12. Under such circumstances, the orders impugned before this court are set aside. The learned DRAT may have been correct in the ultimate decision, but the decision was based on applications which did not have any legal foundation.

13. Hence, liberty is granted to the financial institution to file a fresh application for condonation of delay as also an appeal from the order dated 02.12.2019, passed by the learned DRT-I Kolkata with proper explanations, pleadings and affidavits, through an authorized representative. The period spent in the litigation before the learned DRAT and till the disposal of this application, shall be explained accordingly and the learned DRAT shall take note of the same.

15. The application for condonation of delay, along with the memorandum of appeal shall be filed by the financial institution within three weeks from date. The petitioner shall file the affidavit-in- opposition to the said application within two weeks from receipt of a copy thereof. The learned DRT shall dispose of the said application for condonation of delay on its own merits within three weeks thereafter. Based on the result of the said application, the appeal shall be considered and disposed of expeditiously.

4. Thereafter present appeal was filed along with an application u/s 5 Limitation Act being 223 of 2024. Application u/s 5 Limitation Act was allowed vide order dated 07.08.2024. However, appeal was also allowed by the same order which was challenged before the Hon’ble Calcutta High Court by preferring CO. No. 3383 of 2024 wherein challenge was made on the ground that appeal cannot be allowed in consequence of condonation of delay in filing the appeal. Hon’ble High Court has held that “The grievance is justified; the delay since has already been condoned, the Appellate Tribunal is required to dispose of the appeal in its merit, in accordance with law, after affording opportunity of hearing to the petitioners.” Thereafter, matter was heard after giving a liberty to the respondents herein to file opposition.

5. Heard learned counsel for the parties and perused the records.

6. Learned counsel for the appellant would submit that impugned order dated 02.12.2019 could not subsist as against the order of dismissal of T.A. 09 of 2002, restoration petition was filed which was pending. As has also been held by the Hon’ble High Court in the order dated 12.04.2024 that finding recorded by the DRT in its order dated 02.12.2019 was incorrect as restoration petition was already filed by the financial institution. Learned counsel would further submit that instant appeal is filed in accordance with law. Order dated 07.08.2024 condoning the delay in filing the appeal is already confirmed as the CO No. 3383 of 2024 filed before the Hon’ble Calcutta High Court was only to the extent that the appeal cannot be allowed in consequence of condonation of delay in filing of appeal. It is further submitted that in the order dated 07.08.2024 it has been held that affidavit filed in support of the appeal was in accordance with law as recorded in Para 16 of the order.

7. Per contra, learned counsel for respondents vehemently opposed the prayer in appeal. Learned counsel has drawn my attention towards Para 11 of the order (CO. No. 3926 of 2023) passed by the Hon’ble Calcutta High Court wherein it was held that “Notarizing an affidavit in the absence of the deponent before the Notary Public in Kolkata, was not the proper process. The deponent could not be identified.” Learned counsel for the respondent would submit that even in the present appeal affidavit was notarized in Mumbai while the identification was made by Mr. Pratik Ghosh, ld. Advocate in Kolkata. Hence, affidavit itself is not in accordance with law.

8. Learned counsel would further submit that appeal itself is not maintainable. The grounds taken by the appellant in the appeal could not be substantiated on record as the deponent of the appeal was not present at the time of hearing of the T.A. 09 of 2002 before the DRT. Learned counsel would submit that the plea taken by the appellant that the fact narrated before the DRT was not recorded in the order, should have been brought to the notice of the DRT by way of filing review petition, but the same was not done rather an appeal is filed which is not permissible in the law.

9. As far as impugned order is concerned, it is not in dispute that T.A. 09 of 2002 was dismissed on 17.06.2013. An application for restoration was filed wherein reply was filed and rejoinder to the same was also filed. Thereafter by the impugned order learned DRT dismissed the petition on the ground that no petition pending in the DRT as such matter was dismissed. This order itself is erroneous as has been held by the Hon’ble High Court in CO No. 3926 of 2023 wherein it was held that T.A. 09 of 2002 was dismissed in default and restoration application was filed. Proper procedure was followed by the financial institution. Hon’ble High Court further held that prima facie view taken by the learned DRT was incorrect.

10. In such circumstances, when the restoration application was pending passing of the impugned order itself is against the law. It is immaterial as to whether this fact was brought to the notice to the DRT or not? But it was the duty of the learned DRT to ensure that the restoration petition should be tagged with the O.A. and dealt with in accordance with law. Hence, impugned order itself is illegal, perverse and against law.

11. Now next question arises about the maintainability of the appeal. In the earlier Appeal No. 46 of 2020 against which CO No. 3926 of 2023 was filed before the Hon’ble Calcutta High Court wherein Hon’ble High Court held that the procedure followed by the bank was not proper. In that case affidavit was notarized in the absence of deponent before the Notary Public in Kolkata. On that ground Hon’ble High Court held that learned DRAT may have been correct in the ultimate decision, but the decision was based on applications which did not have any legal foundation. Accordingly liberty was granted to the financial institution to file fresh application for condonation of delay and also appeal against the order dated 02.12.2019 passed by learned DRT with proper explanations, pleadings and affidavits through an authorized representative. However, revision application was dismissed. Consequently, present appeal is filed. In the present appeal an application u/s 5 Limitation Act being I.A. No. 223 of 2024 was filed which was decided on 07.08.2024. In the application u/s 5 Limitation Act same plea of notarization of affidavit was raised which was dealt with in the order dated 07.08.2024 passed by

this Tribunal. For the sake of convenience we may reproduce said Para along with Para 14, 15 and 16.

14. Perusal of the affidavit would indicate that this affidavit was sworn by the deponent, Mr. Parag Dholakia, before the Notary, Dr. S.C. Srivastava at Mumbai on 26.4.2024. The Notary has affixed his seal which shows the Registration No. 2849 and the expiry date is 23.2.2025. The deponent was identified by Mr. Pratik Ghose, Advocate. Much emphasis is laid by the Learned Counsel for Respondent that the verification was required to be made under DRAT Rules and no leave is sought to affirm the affidavit. So far as signatures of Mr. Pratik Ghose, Advocate, are concerned, they are not disputed. Signatures of deponent, Mr. Parag Dholakia, as well as the Notary, Dr. S.C. Srivastava, are also not disputed. Deponent affirmed the affidavit in the presence of the Notary, Dr. S.C. Srivastava at Mumbai. It is also not under challenge that the deponent was not present before the Notary at the time of affirming the affidavit. He had duly verified the contents of the affidavit.

15. Learned Counsel for Respondent has placed reliance upon the judgment of the Hon’ble Karnataka High Court in V.R. Kamath -vs- Divisional Controller (ILR 1997 KAR 1856). The facts of that case are different from the facts of the present case. In that case admittedly the Oath Commissioner verified the affidavit which was sworn by some person other than the deponent. In the present case, this is not the case that Mr. Parag Dholakia did not sign the affidavit. Hence, the case relied upon is not applicable in the present case.

16. In the present case, deponent was duly identified by Mr. Pratik Ghose, Advocate. Deponent affirmed the affidavit before the Notary, Dr. S.C. Srivastava, which is in accordance with the Provisions of Section 8 (1) (e) of the Notaries Act, wherein a Notary can administer oath to any person. Notary, Dr. S.C. Srikvastava, was duly appointed as Notary and was performing his functions as a Notary. Accordingly, the affidavit was duly affirmed before him by the deponent. Hence, I do not find any illegality in the affidavit filed along with the Memo of Appeal and an application under Section 5 of the Limitation Act.

12. This order dated 07.08.2024 was challenged before the Hon’ble Calcutta High Court in CO No. 3383 of 2024 only to a limited extent that grievance of the petitioner is that the appeal cannot be allowed in consequence of condonation of delay in filing of it. Accordingly, Hon’ble High Court dispose of the petition with the direction that “the grievance is justified; the delay since has already been condoned, the Appellate Tribunal is required to disposed of the appeal on its merit, in accordance with law, after affording an opportunity of hearing to the petitioners.” There is no challenge to the finding recorded in the order dated 07.08.2024 as far as filing of the affidavit by Mr. Parag Dholakia of Kotak Mahindra Bank Ltd. is concerned. Accordingly, finding recorded in Para 16 of the order dated 07.08.2024 attained finality.

13. Even if we look into the affidavit, for the sake of argument, we find it that the deponent affirmed the affidavit before Dr. S.C. Srivastava, Advocate & Notary at Mumbai. It is not disputed that the deponent was not present before the Notary Public at the time of affirming the affidavit. Deponent affirmed the affidavit in accordance with law. Section 8(1)(e) of the Notaries Act, 1952 demonstrates that it is the function of the Notary to administer oath to, or take affidavit from, any person . Dr. S.C.Srivastava, Advocate, was duly appointed as Notary and was performing function as Notary. Accordingly, affidavit affirmed by the deponent, there is no illegality in the affidavit filed along with the memo of appeal. Facts of the present case are different to the facts of the earlier appeal No. 46 of 2020. Accordingly, we are of the considered view that affidavit filed by the deponent in support of the appeal is in accordance with law.

14. On the basis of the discussion made above we are of the considered view that the impugned order cannot sustain. Patent illegality is committed by the learned DRT in dismissing the matter. Learned DRT should have considered restoration application and dispose of the same on merit. Accordingly, order dated 02.12.2019 is liable to be set aside.

O R D E R

15. Appeal is allowed. Order dated 02.12.2019 passed by learned DRT-I Kolkata is hereby set aside. Learned DRT Kolkata is hereby directed to decide the restoration application in accordance with law after affording opportunity of hearing to the parties.

16. Since the matter is pending from 1980, hence, learned DRT is hereby directed to dispose of the restoration application within 45 days from the date copy of this judgment is received in the DRT-I Kolkata. Parties are directed to appear before DRT-I Kolkata on 07.09.2026. Learned DRT is expected not to grant any adjournment to either of the parties except on any exceptional circumstances.

17. Registrar is directed to communicate this judgment to learned DRT-I Kolkata immediately. File be consigned to record room. Copy of the judgement/Final Order be uploaded in the Tribunal’s website. Order dictated, signed and pronounced by me in the open Court on this the 18th day of August, 2026. (Anil Kumar Srivastava, J) Chairperson Dated : 18.08.2026 /pkb